Cross examination of alleged victims of abuse in family cases

In D (Appeal: Failure of Case Management)[2017] EWHC 1907 (Fam) the Court of Appeal recently considered the mother’s application for an appeal which raised issues about judicial case management and in particular the court’s approach to the cross examination of an alleged victim by an alleged abuser.

Background

The main issue in the case was whether or not the father should have contact. The proceedings began with cross applications by the parents in January 2013 when the child was aged 3. The child and father had not seen each other since then and the mother opposed any contact alleging that she suffered very serious abuse at the father’s hands. There was a suspension of the proceedings and it was not until the father was acquitted by the criminal court of all charges arising from mother’s allegation that the family proceedings resumed.

The matter came before the family court when directions were given by a Deputy District Judge with specific reference to Practice Direction 12J Child Arrangements And Contact Orders: Domestic Violence And Harm, requiring the father, who had throughout been unrepresented, to write down any questions that he wished to put to the mother, so that they could be put to her by the court. In August 2015, the matter was specifically allocated to another judge and her first task was to conduct a fact finding hearing, it being obvious that the allegations made by the mother would have a strong effect on the welfare decisions depending upon any findings. The case was listed for a fact finding hearing on no less than eight occasions, and repeatedly adjourned in part due to delays with obtaining transcripts from the father’s criminal trial. In addition to that, the father was directed to set out his questions to the mother in writing. However, he failed to comply with this direction on a number of occasions.

The fact finding process finally began in March 2017, when the mother gave evidence from behind a screen, as part of special measures. Much of the 5-day hearing was taken up by the mother giving evidence in response to questions by her barrister. During this time there was a huge amount of debate between the judge and mother’s counsel as to how father’s case was to be put to the mother. During the course of the week, a Cafcass officer was asked to give evidence, but the court decided her enquiries were inadequate, and the court appointed a Children’s Guardian to help represent the child’s best interests. Before the hearing could re-start, the judge made three attempts to find other ways of testing the mother’s evidence, including exploring how the father might be legally represented. The judge went so far as to ask the child’s solicitor to cross examination the mother, on behalf of the father, which the child’s solicitor declined to do. Eventually, the father wrote to the court saying he was willing to forego cross examination of the mother altogether, if that allowed the case to move forward. Despite this, the judge decided that the father could directly cross examine the mother, as long as he did not ask any questions of a sexual nature. This decision led to the current appeal.

The appeal

The mother appealed for the following reasons:

The judge was wrong to allow any direct cross examination of the mother by the father.

The judge was overly lenient to the father in the face of his non-compliance with court orders.

The judge was wrong to put pressure on the child’s solicitor to cross examine the mother.

The judge should have given further reasons for her decision, when asked.

The judge herself invited guidance from the High Court.

The mother also said that there had been a general failure of case management during the appeal hearing itself.

The father asked the court to dismiss the appeal, so that the hearing, due the following week, could go ahead.

On behalf of the child, it was stated that the Children’s Guardian’s role was not to conduct cross examination on behalf of anyone other than the child, and the High Court should give clear directions as to how the case should be conducted in the future, if the matter remained with the same judge.

Mr Justice Peter Jackson allowed the appeal on all grounds. He said that the history showed a ‘chronic failure of judicial case management’ and that the ‘repeated inability of the court to hold a fact finding hearing had led to prolonged and indefensible delay in making an important decision for this young child’.

He went on to decide that;

The judge had been wrong not to appreciate her powers under practice direction 12J (which sets out what the Family Court should do in any case in which there are allegations of domestic violence or abuse).

The judge had assumed that the father had the right to cross examine the mother, even though the court had decided how the mother was to be crossed examined two years earlier. There was no proper basis for revisiting that plan, particularly as the father himself was not complaining about it.

Having decided to revisit the issue of cross examination, the judge did not deal with it effectively, but instead continued to consider what to do, while the mother was giving evidence. That made the hearing unproductive and unfair to the mother, who was entitled to know how her evidence was to be treated before she entered the witness box.

The decision was unprincipled, and wholly unworkable in expecting the court and the father to divide up questions, depending on whether they were sexual or not.

The reasons given by the judge for her decision were inadequate to justify her conclusions; and, when asked to do so, she should have addressed the substantial issues more fully.

The judge’s attempt to delegate the questioning to the child’s solicitor was entirely inappropriate.

The appeal was therefore allowed in full, with the case to be heard afresh, in front of a different judge.